V- HEARD AND FINALLY DECIDED

The fifth and the final condition of res judicata is that the matter di­rectly and substantially in issue in the subsequent suit must have been heard and finally decided by a court in the former suit.

 

PANDURANG RAMCHANDRA V. SHANTIBAI RAMCHANDRA, AIR 1989 SC 2240 AT P. 2249.

The section requires that there should be a final decision on which the court must have exercised its judicial mind.

The expression "heard and finally decided" means a matter on which the court has exercised its judicial mind and has after argument and con­sideration come to a decision on a contested matter.

 

STATE OF MAHARASHTRA V. NATIONAL CONSTRUCTION CO., AIR 1996 SC 2367.

A matter can be said to have been heard and finally decided notwith­standing that the former suit was disposed of

I. ex parte; or

II. by fail­ure to produce evidence (Order 17 Rule 3); or

III. by a decree on an award; or

IV.  by oath tendered under the Indian Oaths Act, 1873.

But if the suit is dismissed on a technical ground, such as non-joinder of necessary party, it would not operate as res judicata. In order that a matter may be said to have been heard and finally de­cided, the decision in the former suit must have been on merits.

Thus, if the former suit was dismissed by a court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder or misjoinder of parties, or on the ground that the suit was not properly framed, or that it was premature, or that there was a technical defect, the decision not being on merits, would not operate as res judicata in a subsequent suit.

 

FOR ILLUSTRATION--

A, a partnership firm, filed a suit against B to recover Rs 50,000. The suit was dismissed on the ground that it was not maintainable since the partnership firm was not registered as required by the provisions of the Indian Partnership Act, 1932. Thereafter, the firm was registered and the subsequent suit was filed on the same cause of action. The suit is not barred by res judicata.

 

Will a suit dismissed for default operate as res judicata?

(a) Yes  

(b) No  

(c) Depends  

(d) None of the above

 

Will an ex parte decree operate as res judicata?

(a) Yes   

(b) No  

(c) Depends

(d) None of the above

 

Will a compromise decree operate as res judicata?

(a) Yes 

(b) No   

(c) Depends   

(d) None of the above

 

Will a withdrawal of suit operate as res judicata?

(a) Yes  

(b) No   

(c) Depends   

(d) None of the above

 

NECESSITY OF DECISION--

In order to operate as res judicata, a finding of a court must have been necessary for the determination of a suit. If a finding is not necessary, it will not operate as res judicata. 

And a finding on an is­sue cannot be said to be necessary to the decision of a suit unless the decision was based upon such finding. Again, a decision cannot be said to have been based upon a finding unless an appeal can lie against such finding. It is the right of appeal which indicates whether the finding was necessary or merely incidental. [This position is also, now, substantially changed by the Amendment Act of 1976. See, Mulla, Code of Civil Procedure (1995) Vol. 1 at pp. 171-74.]

 

FINDING ON MORE THAN ONE ISSUE

When a finding is recorded by a court on more than one issue, the legal position is as under:

 

(A) When suit is dismissed—

If the plaintiff's suit is wholly dismissed, no issue decided against the defendant can operate as res judicata against him in a subsequent suit, for he cannot appeal from a finding on any such issue, the decree being wholly in his favour. But every issue decided against the plaintiff may operate as res judicata against him in a subsequent suit,  for he can appeal from a finding on such is­sue, the decree being against him.

 

(B) When suit is decreed—

If the plaintiff's suit is wholly decreed, no issue decided against him can operate as res judicata for he cannot ap­peal from a finding on any such issue, the decree being wholly in his favour. But every issue decided against the defendant is res judicata  for he can appeal from a finding on such issue, the decree being against him.

 

(C) Appeal against finding

No appeal lies against a mere finding, for the simple reason that the Code does not provide for filing of any such appeal. It may, however, be stated that a person aggrieved by a find­ing in the judgment may file cross-objections, even though the decree might have been passed in his favour. [Explanation to R. 22, Or. 41.]

 

RIGHT OF APPEAL

A decision cannot be said to have been based upon a finding unless an appeal lies against such finding. As a general rule, "everything that should have authority of res judicata is, and ought to be, subject to ap­peal, and reciprocally, an appeal is not competent on any point not having the authority of res judicata.

It is the right of appeal which indicates whether the finding was necessary or merely incidental. The position is, however, substantially changed by the Amendment Act of 1976.

 

RELIEF CLAIMED BUT NOT GRANTED: 'EXPLANATION V

Explanation V to Section 11 provides that if a relief is claimed in a suit, but is not expressly granted in the decree, it will be deemed to have been refused and the matter in respect of which the relief is claimed will be res judicata.

But this explanation applies only when the relief claimed is (i) substantial relief; and (ii) the court is bound to grant it.